High Court decision on SSM postal vote: another failure of fortitude and reason.

In yet another example of the inherent bias and cowardice of the judicial system in favour of politicians and the bureaucracy, the high court recently rejected an appeal against the funding of the government’s SSM poll.

Did parliament give the government permission to withdraw $122 million?

The first of the substantive challenges against the postal survey was that the government did not have a valid “appropriation” to withdraw the $A122 million for it from the Treasury.

Before the government withdraws money, it first needs permission from the parliament, known as an appropriation. This process of parliamentary approval for government withdrawal of funds is required by Section 83 of the Constitution, which states:

No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

It was common ground that parliament has not passed any new appropriation to authorise the withdrawal of the $122 million. So, the government drew ona pre-authorised $295 million bucket of money that had been established by the parliament as a contingency fund. This is known as the Advance to the Finance Minister.

In order for the finance minister to draw upon that money, two conditions need to be met:

the finance minister needs to be “satisfied that there is an urgent need for expenditure”; and

the expenditure needs to be “unforeseen” at the time the act was passed (which was in May, 2017).

One argument was that this type of appropriation is constitutionally invalid – that it gives the government, in effect, a blank cheque to spend up to $295 million, which is in breach of the fundamental purpose of Section 83.

However, the Commonwealth argued that this type of pre-approval has a history that dates to early English and colonial practice. (An appeal to ‘customary’ is fallacious and self-perpetuating, ‘we have always done it this way, and so keep doing it’, and as an argument contains no separate reasoning or facts. It is as meaningful as saying it was God’s will.) Parliament has approved the withdrawal, but chosen to do so by giving the government a wide discretion, limited by the specified amount of money. (Q. Specifically, what is this ‘wide discretion’? What might be allowed/disallowed in the exercise of this discretion, and what are the reasons or guidelines for any such allowance/disallowance? A. Whatever the government says!)

The plaintiffs also argued that the expenditure was neither urgent nor unforeseen. They argued that something could only be “urgent” if it needed to be dealt with so quickly that it would not be possible to go to parliament to seek a special appropriation. They said that the only cause of “urgency” was of the government’s own making: it had chosen to require the survey results to be available by November 15, 2017.

In response, the government argued that it was for the minister, and not parliament or the court, to be satisfied that the expenditures were urgent (No, the constitution says it needs to be urgent, and the high court is saying a government can define the meaning of any word! Self-justification anyone?), and that urgency could be created by changes in policy that result in an urgent need for expenditure within timeframes determined by the government . (So a government can not only define the meaning of words, it can also establish a time-frame by its own actions, for convenient partisan-political reasons, but in the absence of any substantive, separate, or over-riding justification, and call that time-frame urgent!)

The plaintiffs then said a postal survey was not only unforeseen, but in fact was specifically contemplated by the government, even if the exact details had not been determined by May.

The policy of a plebiscite on same-sex marriage was part of the government’s platform at the 2016 election. After the plebiscite was first defeated by the Senate in November 2016, the idea of conducting it via a postal survey was contemplated by at least some government ministers. It had been contemplated so seriously that the Department of Finance had received advice from the attorney-general’s department on the option of conducting a postal plebiscite in March 2017.

The government argued in response that the expenditure was unforeseen because, while the policy of conducting a plebiscite was longstanding, the expenditure on a postal survey by the ABS was not endorsed by cabinet, and thus becoming official government policy, until after the budget in May. This was enough to make the expenditure unforeseen. (So the government is saying long-standing discussion of a postal survey at no time did or should have included a component of how to finance it, how to pay for it? Really?? It would seem to be at least an admission of incompetence on their part, but does meet the requirement of being unforeseen.)

The plaintiffs raised an additional argument that the expenditure was not for what is referred to as the government’s “ordinary annual services”. Under the Constitution, the Senate’s powers over expenditure on such services is limited. Under Section 53 of the Constitution, it can’t introduce or amend such expenditures, although it can reject them outright.

The Advance to the Finance Minister the government was relying on is found in what is known as Appropriation Act No 1, which contains expenditures for the government’s ordinary annual services. The Senate’s powers over this bill are therefore limited. The plaintiffs argued it was wrong for the government to draw on the Advance to the Finance Minister contained in such a bill for the postal survey, which was a new, unique and extreme set of circumstances.

The difficulty with each of the arguments that challenged the $122 million is that the court is generally reluctant to interfere with how the parliament has decided to authorise government withdrawal of funds. (The high court is deferring to parliament, but it is not parliament authorizing this. It is the government, and they have deliberately bypassed parliament. Is the decision of a government the same as a vote endorsed by parliament? Can a government act contrary to common-sense and the constitution, without any endorsement of that action from parliament, and not be held accountable? This is the question.)

The High Court has previously indicated that the question is, essentially, a matter to be resolved by the parliament. (It is the responsibility of the high court to ensure that a government acts legally, in accordance with the constitution, and with the interests and freedoms of the people of australia in mind. The high court is abrogating this prime responsibility.)

The High Court will later be writing its reasons to explain why it allowed this course of events to continue. I, and many other Australians, will be reading and discussing it.